Faith Based Discrimination And Federal Funding

While Mr. Obama opposes requiring religious tests for recipients of aid or use of federal money to proselytize, The Associated Press reported that he supports letting religious institutions -- in the non-federally funded parts of their activities -- hire and fire based on faith, according to a senior adviser to the campaign who the news agency said spoke on condition of anonymity.

While that notion appeared controversial, it seems to find support in a 2000 case involving the Boy Scouts of America. The Supreme Court ruled that the group, as a private organization, had a First Amendment right to set its membership rules.

(Emphasis supplied.) The bolded portion of the excerpt is simply incorrect. The Boy Scouts case (the Dale case) is not relevant to federal funding of organizations. As Chief Justice John Roberts explained in his decision in Rumsfeld v. Forum For Academic And Institutional Rights, Inc., which I discussed in this post, Dale is inapposite to cases involving the Spending Power:

The most interesting counterpoint is the Dale case, which involved the SCOTUS striking down a New Jersey law that, by operation, required the Boy Scouts of America to not exclude gays from participating as scoutmasters, ruling the law was an unconstitutional infringement upon the Boy Scouts' First Amendment rights.

Chief Justice Roberts stated that:

FAIR argues that the Solomon Amendment violates law schools' freedom of expressive association. According to FAIR, law schools' ability to express their message that discrimination on the basis of sexual orientation is wrong is significantly affected by the presence of military recruiters on campus and the schools' obligation to assist them. Relying heavily on our decision in Dale, the Court of Appeals agreed. 390 F. 3d, at 230-235.

In Dale, we held that the Boy Scouts' freedom of expressive association was violated by New Jersey's public accommodations law, which required the organization to accept a homosexual as a scoutmaster. After determining that the Boy Scouts was an expressive association, that "the forced inclusion of Dale would significantly affect its expression," and that the State's interests did not justify this intrusion, we concluded that the Boy Scout's First Amendment rights were violated. 530 U. S., at 655-659.

Dale is easily distinguished from the ROTC case, and Chief Justice Roberts does so:

The Solomon Amendment, however, does not similarly affect a law school's associational rights. To comply with the statute, law schools must allow military recruiters on campus and assist them in whatever way the school chooses to assist other employers. Law schools therefore "associate" with military recruiters in the sense that they interact with them. But recruiters are not part of the law school. Recruiters are, by definition, outsiders who come onto campus for the limited purpose of trying to hire students--not to become members of the school's expressive association. This distinction is critical. Unlike the public accommodations law in Dale, the Solomon Amendment does not force a law school " 'to accept members it does not desire.' " Id., at 648 (quoting Roberts, supra, at 623). The law schools say that allowing military recruiters equal access impairs their own expression by requiring them to associate with the recruiters, but just as saying conduct is undertaken for expressive purposes cannot make it symbolic speech, see supra, at 16, so too a speaker cannot "erect a shield" against laws requiring access "simply by asserting" that mere association "would impair its message." 530 U. S., at 653.

Now to be clear, Dale is not a defensible decision period. The exercise is simple enough. Replace black for gay. Moreover, Dale gives no solace to the schools here. The Solomon Amendment, as well as for the reasons Chief Justice Roberts describes, is also different because it is an exercise of the Spending Power, clearly leaving the choice to the schools. They can speak as they choose. They are not entitled to federal money.

Chief Justice Roberts expounded on the difference in Rumsfeld:

[In] Grove City College v. Bell, 465 U. S. 555, 575-576 (1984), we rejected a private college's claim that conditioning federal funds on its compliance with Title IX of the Education Amendments of 1972 violated the First Amendment. We thought this argument "warrant[ed] only brief consideration" because "Congress is free to attach reasonable and unambiguous conditions to federal financial assistance that educational institutions are not obligated to accept." Id., at 575. We concluded that no First Amendment violation had occurred--without reviewing the substance of the First Amendment claims--because Grove City could decline the Government's funds. Id., at 575-576.

. . . The Solomon Amendment neither limits what law schools may say nor requires them to say anything. Law schools remain free under the statute to express whatever views they may have on the military's congressionally mandated employment policy, all the while retaining eligibility for federal funds. See Tr. of Oral Arg. 25 (Solicitor General acknowledging that law schools "could put signs on the bulletin board next to the door, they could engage in speech, they could help organize student protests"). As a general matter, the Solomon Amendment regulates conduct, not speech. It affects what law schools must do--afford equal access to military recruiters--not what they may or may not say.

If indeed Barack Obama intends to endorse providing funding to faith based organizations that choose to discriminate in hiring, then that is on him. There is no legal escape hatch as the New York Times attempts to argue.

And as I said before, if he does intend to do that, I will not support him nor will I vote for him for President.

The Obama campaign says the AP's first report this morning that Obama supports "their [faith-based organizations'] ability to hire and fire based on faith" is incorrect. In fact, Obama's plan, they say, would prevent organizations from discriminating based on faith.

Note: The second version of AP story says Obama would support "some ability to hire and fire based on faith."

The change is of one word, from "their" to "some."

But the campaign says the second version is still inaccurate.

I'm Catholic and I'm involved in civic activities with my church. I don't know (but will look into) whether my church receives federal funds for any of its programs. I do know that most of its community outreach programs working with groups like the poor, homeless persons and prisoners is done on a volunteer basis and so there is no hiring/firing involved. The ministries DO NOT involve proselytizing (in fact the church leaders involved insist that there be no pre-reqs such as prayer, etc. for getting the help that is offered). Prayer is only offered if the person receiving services asks for it.

I also know of other churches where they do require people to sit through a church service or participate in prayer before they can receive the outreach services. If those types of programs are receiving federal funds that would be wrong.

Here in the red-red states, this is a hot-button issue with Evos. Most of their churches are big and, yes, employ more than 15 people. The thought of having the government tell them who they can hire and fire drives them crazy. (I've worked for large companies that have found very creative ways to hire people from top management's churches.)

Here's the problem. The same people don't want the government involved in their churches. They don't want -- or need -- tax money to fund their outreach programs. And, most important, they don't want THEIR tax money going to YOUR church. Many of them loathed Bush's initiative because of that.

So, this was a calculated appeal to Conservatives badly executed by a Liberal trying to pander.

I was a non-profit service provider and executive director for many years and the Faith Based Initiative cut into a lot of the funding that would ordinarily have been available for organizations that didn't have a "faith element" as part of their direct service. Many churches had outreach programs to help people regardless of their faith or lack of, and these programs were operated independently of the church, but allowed the church to express its concern for the "less fortunate". These programs were essentially funded through the church from donations and got government matches when possible to expand their outreach and strenghten their services. They were always required to evaluate and document success, and they were the hardest hit losing 10-30% of their government funding to the evangelical faith-based start-up programs under the Bush Administration. The independence was required by the government and worked for decades. Bush, however, allowed for a good chunk of funding to be set aside for churches whose giving of services was based upon the faith of the service provider, i.e., "a belief in God will help uplift this person from his or her suffering". This faith-as-a-service now is considered a direct service provision much like counseling or education classes would be considered a service. Rewriting the criteria now favors these faith-as-cure programs.

The one thing the churches are not allowed to do is to reject or evict an individual from receiving services if they do not accept the "truth" of the religious tenets being offered. So, they need to let the person stay the night at a shelter, can require them to attend a religious service, but can not require them to believe the claims the religious service espouses.

This is the whole point - faith-based means effecting a change for the better in an individual because they have faith in God, AND NOT a program administered by a faith-based organization with staff and volunteers that are not necessarily church members (which was the way it was required to be in the past). Evangelicals took advantage of this (indeed, they wrote the initiative Bush implemented) so they wouldn't have to use church funds, but could get taxpayer money as a church to do "church work".

The other point of allowing churches to discriminate while receiving federal funds at the same time being exempted from federal non-discrimination laws was argued as "honoring" the separation of church and state - the federal government had no business telling churches who they could hire, which is correct, but exempt used to mean you couldn't get any taxpayer money (because churches don't pay taxes). This was one of the more brilliant coups of Bush's tenure - essentially funding an evangelical movement with taxpayer dollars and few batted an eye, while removing millions away from liberally minded outreach programs administered through religious and non-religious organizations alike. It was akin to cutting off the CETA grants of the 70's by Nixon and outlawing the cohabitation of more than 5 unrelated adults in a single household. That resulted in the abrupt termination of a vast coast-to-coast underground alternative movement with 2 quiet little pieces of executive legislation.

So, while there may be some debate about to what degree Obama favors separation of church and state, there is no longer any meaningful separation in terms of religious organizations being allowed to discriminate on who they hire or allow as a volunteer as long as they don't discriminate on who they serve.

Now, make no mistake, as someone who used to teach constitutional law, I believe deeply in the separation of church and state, but I don't believe this partnership will endanger that idea - so long as we follow a few basic principles. First, if you get a federal grant, you can't use that grant money to proselytize to the people you help and you can't discriminate against them - or against the people you hire - on the basis of their religion. Second, federal dollars that go directly to churches, temples, and mosques can only be used on secular programs. And we'll also ensure that taxpayer dollars only go to those programs that actually work.

That your reaction is similar to mine in regards to the seriousness of this new development. I had always planned to vote for him if it was not going to be Hillary and yet I find this to be the first huge miscalculation in the campaign that I can not support. I wonder BTD if this all turns out to be correctly reported, who then would you support for President? I will not vote for McCain, and you are a Democrat through and through, so this must be the height of seriousness for you as well. I'm sure we'll hear more of your thoughts, I am very interested to continue hearing your take.

no President or Congress that would set up what would effectively be a religious inspection service - or a religion police force.

This program for many reasons legal and political will go largely unchecked and therefore will be a magnet for corruption and hucksters - maybe not under Obama - but there is evidence suggesting that it has been under Bush and we only elect Presidents for two-terms in this country.

with respect to some things like NAFTA and the tcom bill is that they faltered not by design but by an inability to enforce many of the safeguards. That when republicans took over they became tools if destruction.

I think Clinton would agree with that. In retrospect.

So its fair to point out that while the a to be followed above are wonderful, we don't really know how to sanction deviations from those principles once we, proverbially, go there.

you get in office and end up spending so much time making sure republicans wont be able to use policies intended to help people to hurt people and four years later you find you haven't implemented any policies that actually help people.

Is this a wink and a nod that under an Obama administration some discriminatory practices will not be prosecuted? If it doesn't involve federal dollars he will not care? Will businesses that discriminate, but do not have federal contracts be ok? What about businesses that do have federal contracts but can argue that federal dollars aren't involved in their discriminatory activities?

I don't see why you'd infer that businesses would not be prosecuted for discriminatory behavior. Obama's essentially talking about a return to the pre-Bush standards with respect to religious groups, which has nothing to do with anything except religious groups.

it is illegal. There are exceptions for religious organizations if the job is tied to the a bona fide religious aspect of the organization. For example, a church can't discriminate against the janitor because of religion, but they can when they are choosing the minister.

There have been a few instances of churches firing out people. And invariably, even when there is a local gay rights law, the church wins. Since most US churches use the Betty Bower line (God told me to hate you) about us, I really have problems with this. But then I gave up on Obama last winter.

is a phrase that bothers me a lot. Separation of church and state isn't an "idea"--it is a principle of our nation's constitution. Obama's speech here seems to be brushing this off--"No, REALLY, there's no conflict here as long as we follow these EZ steps!"

I'm also quite bothered by this part of the speech:

And my Council for Faith-Based and Neighborhood Partnerships will also have a broader role - it will help set our national agenda. Because if we are going to do something about the injustice of millions of children living in extreme poverty, we need interfaith coalitions like the Let Justice Roll campaign standing up for the powerless. If we're going to end genocide and stop the scourge of HIV/AIDS, we need people of faith on Capitol Hill talking about how these challenges don't just represent a security crisis or a humanitarian crisis, but a moral crisis as well.

because I don't think a secular government needs to have interfaith coalitions on hand advising us what is and isn't a moral crisis in order to stand up for the powerless or right injustice. And anyway, what does Obama mean, exactly, when he says that HIV/AIDS is a "moral" crisis? Another example of his very convenient and ambiguous speechifying.

is that millions of people are dying from AIDS but apparently, according to Obama, if we don't give taxpayer money to people who discriminate in their hiring practices, then the "faith based" won't care much about that death and suffering.

that's what it is. If "people of faith on capital hill" don't already think that AIDS is a moral crisis, then I really don't think that state sponsored religion is suddenly going to change their minds.

I disagree with your implicit characterization of morality. Morality and ethics are not necessarily tied to religion, and we shouldn't allow conservatives to control the discourse of morality and ethics. In our society, morality is typically understood within the framework of Christianity; however, it is possible to create a secular, socially-agreed upon system of morality. A system of moral or ethical codes isn't a bad thing until it becomes a tool for oppressing others.

That being said, I agree that I don't need a faith coalition in Washington identifying moral crises.

My fault for not being clear. I don't think faith and morality are synonymous. In fact, I personally think that more often than not they are antithetical. Sometimes, "people of faith" are moral, but frankly I think when that happens it is just coincidence.

What I meant to say is that it is nonsensical that Obama, who in other speeches and other parts of this speech seems to imply that faith=morality and morality=faith, then says that state sponsored religion is necessary to convince "people of faith on capital hill" to recognize the moral crisis of the deaths of millions of people from AIDS. We have to pay religions to be moral now? No thank you.

But what I also was trying to point out up in my other post is the convenient double meaning of "moral" as it is used in Obama's speech. Sure, I figure that when he puts the words "moral crisis" next to HIV/AIDS he's probably talking about a moral obligation to help suffering people.

But who's to say that someone from the religious right isn't going to hear this and think, "Ah, Obama's saying that HIV/AIDS is a moral crisis of sexual promiscuity, homosexuality and drugs"?

First, if you get a federal grant, you can't use that grant money to proselytize to the people you help and you can't discriminate against them - or against the people you hire - on the basis of their religion. Second, federal dollars that go directly to churches, temples, and mosques can only be used on secular programs. And we'll also ensure that taxpayer dollars only go to those programs that actually work.

Is he serious?

First, all religions are supposed PROSELYTIZE. It is the purpose to preach the faith in any way possible. If it means serving food or giving clothes and shelter or after-school programs, there is always a religious message behind it.

Which leads to the second point... religious centers do not run "secular" programs, they run programs that help people with their "secular" needs while performing acts of good works, required by most religious faiths. Which leads to the last point...
It is not important that the program works, it's important to understand that the State could provide the same service if it wanted to. But the government has been "privatizing" its responsibilities since Reagan.

This is just another way of the government to push off its responsibility to its citizens and using religious organization to do the job.

Christianity and Islam (most variants thereof) include an obligation to expand the flock. Judaism, Hinduism and Buddhism certainly do not.

And religious organizations certainly do run secular programs. Check the web page of pretty much any chuch. And conversely, lots of secular organizations (the Boy Scouts, for example) have a religious or semi-religious component.

Look, I'm an atheist too, but please try to view this with some perspective. Try this: if you had to choose between an expanded, government-funded social services offering (say, live-in job training centers with built-in daycare) run through a church or no program at all, which would it be? Does that clarify? The real world isn't that simple, but that's the sort of tradeoff we're looking at.

that it is a valid question because we don't have to chose between church-run programs and no programs at all. We can have programs that are run by the government without church involvement. That is the way it should be because I believe that, no matter how hard they try, they can't keep their religion out of it.

I don't see the protection or the repugnance here. It's a misinformed attempt to clarify what the AP story reported. Why isn't the AP story "repugnant" too?

I mean, if you know the facts here, please speak them. There are lots of people with questions about this policy. Slinging names at the people trying to find answers (or at least, the ones providing partial answers that are not damaging to Obama) seems unhelpful to me.

But their behaviour towards the Obama camp is exactly what we accuse the right-leaning papers of doing.
Last week they labeled Obama's huge turnarounds as 'pragmatism'. Now if McCain had done what Obama did he would been (and I believe was) judged more harshly.

Now in this case I was calling the whole faith-based initiative thing repugnant, because giving money to churches and 'faith-based' communities is essentially a collaboration between church and state. Funding schools that refuse to teach evolution, that teach theology as the ultimate way of life is something that government should not indulge in.

Just because something is smart politically doesnt mean it is not repugnant and doesnt mean that NYT is going out of its way to simplify/protect Obama. Atleast in my view.

Are you maybe talking about the editorial board? The linked article is just a news story. It's not judging Obama at all, harshly or no. It's just some extra reporting on the still-unannounced faith based stuff.

And it happened to contain a misapplied legal argument, which means it doesn't tell us much. But, really, I see no outrage here.

hiring was legal a couple of years ago? It was head start. They passed a law that faith-based orginizations that ran head start programs could hire on the basis of religion. It was a travesty. I may have some details wrong but I swear that happened.

Evidentially were supposed to be the beneficiaries Bush's faith based initiatives, but he couldn't help himself in diverting the money to mega churches who invariably would support permanent GOP rule.

Bill Clinton started the whole thing with his

"charitable choice" provisions first included in the 1996 welfare reform legislation and subsequently included in three other acts signed by President Clinton

On Jan. 19, 2005, Mrs. Clinton, speaking before clergy members in Boston, captured the spirit that is likely to prevail in the White House, no matter who is elected: "But I ask you, who is more likely to go out onto a street to save some poor, at-risk child than someone from the community, someone who believes in the divinity of every person, who sees God at work in the lives of even the most hopeless and left-behind of our children? And that's why we need to not have a false division or debate about the role of faith-based institutions, we need to just do it and provide the support that is needed on an ongoing basis." Amen.

The other striking development in charitable choice law is its explicit provision that accepting government funds does not entail loss of a religious organization's right to choose to hire staff who share its religious beliefs.

I'll raise you one. Dale has been used to successfully deny the Scouts access to to funding, gov't owned campgrounds and marinas etc. At least where there are local non-discrimination ordinances. And should be used in more areas (like they use Federal military land for Jamborees - whoops I gues that's OK!).

They opened a whole can of worms by saying they were a private organization (club) and could discriminate if they wanted because they also use schools to meet in and Parks to camp in and......

So will you be voting for Bob Barr, or for John McCain? Or will you just go full on for Ralph Nader (the man of the people!!!)!!!!

Just to point out - the campaign makes it clear they won't be doing as you suggest:

The new partnership will not endanger the separation of church and state, so long as a few basic principles are followed. First, if an organization gets a federal grant, it will not be permitted to use that grant money to proselytize to the people it serves, and the group will forbidden to discriminate against them on the basis of their religion. And groups will be required to comply with federal anti-discrimination laws in their hiring practices--including Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion, sex, or national origin.

Second, federal dollars that go directly to churches, temples, and mosques will only be allowed to go toward secular programs. And Obama will ensure that taxpayer dollars only go to those programs that actually work.